F.A.No.307 OF 2007 AGAINST C.D.NO.68 OF 2003 DISTRICT CONSUMER FORUM SRIKAKULAM
1. The Assistant Engineer (Operation)
Eastern Power Distribution Company of A.P.ltd.,
Saravakota, Saravakota Mandal, Srikakulam
2. The Asst. Divisional Engineer, Operation
Eastern Power Distribution Company of A.P. Ltd.,
Tekkali Mandal, Srikakulam Dist.
3. Assistant Accounts Officer, Electrical Revenue Officer,
Eastern Power Distribution Company of A.P. Limited
Tekkali Mandal, Srikakulam Dist.
4. The Divisional Engineer, Assessments
Eastern Power Distribtuion Company of A.P. Ltd.,
Appellants/ opposite parties
A N D
Pagoti Dhaymayanthi W/o P.Dhananjaya
Owner of the Mini Flour Mill
R/o Aludu Village, Saravakota Mandal
Counsel for the Appellants Sri O.Manohar Reddy
Counsel for the respondent Sri P.V.Raghuram
THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
SRI R.LAKSHMINARSIMHA RAO, MEMBER
WEDNESDAY THE THIRTIETH DAY OF DECEMBER
TWO THOUSAND NINE
Oral Order ( As per R.Lakshminarsimha Rao, Member)
This appeal is directed against the order dated 30th day of January,2008 passed by the District Forum, Visakhapatnam whereby the complaint filed by the respondent was allowed declaring the show cause notice dated 7th August,2002 as illegal and arbitrary and directing refund of Rs.26,000/- with interest @ 12 %p.a. from 2nd Septmebr,2002 along with a sum of Rs.5000/- towards compensation and Rs.3,000/- towards the costs.
Briefly stated the material facts giving rise to the appeal are: The complainant for his mini Flour Mill with 2 HP motors being run under self employment scheme obtained service connection bearing number 230. As there were other flour mills in the village, Aludu the complainant used to work on the mill one or two hours a day and for about 20 days in a month. The opposite parties used to issue bi- monthly bill for Rs.100 to Rs.200/-. The complainant used to pay the bills regularly. The opposite party no.2 issued assessment bill dated 7th August,2002 alleging that the opposite party no.4 has inspected the service connection on 30th July,2002 and found that there was am yellow wire connected to the Meter incoming phase II terminal block to outgoing cut out whereby the Meter was not running in accordance with the load. Basing on the report of the opposite party no.4, the opposite party no.2 issued demand notice for Rs.51,998/- and Rs.2,000/- towards compound fee.
On being approached with a request to withdraw the notice, the opposite parties advised the complainant to approach Vigilance Inspector, who without giving any opportunity to the complainant arrested her husband on 1st August, 2002. The complainant requested for restoration of power supply by paying an amount of Rs.2,000/- towards the compounding in addition to the half of the assessment amount in total a sum of Rs.26,000/- . On 10th December,2003, the opposite party no.3 addressed a letter to the opposite party no.1 to restore the power supply to the service connection of the complainant which the opposite parties had not done so. The opposite party no.4 issued final assessment order dated 21st September,2002 based on the final assessment notice issued by the opposite party no.2 for a sum of Rs.47,508/-. The final assessment order was issued on the ground that the complainant has not filed any objection to the final assessment notice. The opposite parties did not inspect the service connection of the complainant nor conducted Meter test. The preliminary notice dated 7-08-2002 and final notice dated 21-09-2002 are irregular and arbitrary and liable to be set aside.
The opposite party no.1 filed counter. The opposite parties no.2 to 4 adopted the counter filed by the opposite party no.1.
It was contended that on 20th August,2002 the opposite party no.2 inspected the service connection of the complainant and detected that the complainant connected a yellow wire from the incoming phase to the out going cut out bypassing the meter and thereby the complainant committed pilferage of energy. Based on the DPE Report the opposite party no.1 issued provisional assessment notice for Rs.51,998/- towards pilferage of energy along with supervising charges of Rs.150/-. The complainant paid an amount of Rs.26,000/- of the initial assessment on 2nd September,2002. Therefore, on 3rd September,2002 power supply was restored to her service connection. On appeal by the complainant, the opposite party no.4 finalized the case directing the complainant to pay an final assessment amount of Rs. 47,308/- after deducting the amount paid by her. The complainant was due an amount of Rs.21,308/- which she had not paid as a result of which the opposite party no.3 issued D-list upon receipt of which the opposite party no.1 disconnected the power supply on 11th July,2002 and restored the same on 5th August,2002 in compliance of the interim order passed by the District Forum.
The service connection bearing number 230 was released in the name of the compliant under category II on bi-monthly basis. There are 360 service connections in Alludu village and no other flour mill except the one belonging to the complainant. The husband of the complainant was present at the spot at the time of the inspection of the service connection The consumption particulars for the months of July,2002, septmeber,2002, January,2002, July,2003 show that the power supply was restored to the service connection on 30th July,2003. The complaint is bad for non joinder of ADE. Hence, prayed for dismissal of the complaint.
The complainant filed her affidavit. The document filed by her were marked as ExA1 to A6.
The District Forum opined that the opposite parties failed to prove the inspection of service connection by the opposite party no.4. Therefore, the assessment notice was illegal and arbitrary.
Aggrieved by the impugned order, the opposite parties filed appeal contending that the complainant was present at the time of inspection of the service connection and that the opposite parties issued ExB15 to the complainant to pay final assessment amount.
The point for consideration is whether the impugned order suffer from any infirmity of appreciation of facts or law?
The complainant’s running flour mill and the service connection bearing number 230 sanctioned to her flour mill is not dispute. It is also not in dispute that the complainant was running the flour mill to eke out her livelihood. The complainant’s case is that as there were many other flour mills in Aludu village, she could run her flour mill for an hour or two in a day and twenty days in a month. The opposite parties denied the statement of the complainant contending that there were no other flour mills in the village except that of the complainant. The complainant has not substantiated her contention by means of any evidence. The conclusion would be that the complainant has claimed existence of the other flour mills in the village in order to obviate the impression that as her flour mill is the only mill in the village, naturally the consumption of the energy would be beyond the permitted limit since a single mill has to cater to the needs of the large number of the villagers.
The billing of consumption is directly proportional to the consumption of energy. The opposite party no.4 inspected the service connection of the complainant on 30th July,2002 and issued ExB4,original of inspection notes. The complainant denied the inspection of her service connection by the opposite party no.4. ExB4 though does not contain the signature of the complainant, it bears the signature of her husband. The contention of the complainant that no inspection of her service connection was made on 30th July,2002 is untenable. Consequently, the opposite party no.4 issued ExB3 provisional assessment of loss of energy. The complainant paid an amount of Rs.26,000/- which include the fifty percent of the provisional assessment amount and a sum of Rs.2,000/- towards compounding charges. ExA2 evidences payment of the amount by the complainant. Consequently to payment of the amount under ExA2, the opposite party no.3 directed through letter dated ExA3 the opposite party no.1 to restore power supply to the service connection of the complainant. Criminal proceedings were launched against the husband of the complainant for committing pilferage of energy as seen from ExB5 and B6, copies of the case diary issued by the Inspector of police, vigilance, Srikakulam. Thereafter, the complainant preferred appeal challenging the provisional assessment made by the opposite party no.4.Therefore, the complainant not only committed the pilferage of energy but she has also exhausted the remedy of preferring appeal against the provisional assessment of the energy. Having taken recourse in the manner provided under the Indian Electricity Act, the complainant cannot file complaint invoking the provisions of the consumer protection act. Even otherwise, it is settled law that in the matter of pilferage of energy, the consumer forum cannot entertain the complaint in view of the establishment of a special Tribunal for the purpose of holding enquiry in such matters. For all these reasons, we hold the appellants’ contention and allow the appeal.
In the result, the appeal is allowed setting aside the order passed by the District Forum. Consequently, the complaint dismissed. No costs.